Opinion
764 KA 17–01182
07-31-2019
The PEOPLE of the State of New York, Respondent, v. Michael BRACKETT, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree ( Penal Law § 160.15[2] ). While we agree with defendant that the written waiver of the right to appeal does not establish a valid waiver because Supreme Court "did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it" ( People v. Bradshaw , 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see People v. Grucza , 145 A.D.3d 1505, 1506, 45 N.Y.S.3d 722 [4th Dept. 2016] ), we nonetheless conclude that defendant validly waived his right to appeal inasmuch as the record establishes that the court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Rodriguez , 93 A.D.3d 1334, 1335, 940 N.Y.S.2d 508 [4th Dept. 2012], lv denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012] [internal quotation marks omitted]; see People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Contrary to defendant's contention, we conclude that the valid waiver encompasses his challenge to the severity of the sentence (see Lopez , 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle , 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).